212(e): Two-Year Home Residency Requirement
The two-year home-country residence requirement (212(e)) affects some J-1 Exchange Visitors and their J-2 dependents. See the United States Department of State’s Website for more information.
The information below summarizes some very complex and sensitive issues. It is intended only to help you understand the nature of the requirement, not to serve as a legal reference. Do not assume, from reading this web page, that you are or are not subject to the requirement. Consult an ISSS advisor.
Intent of the Requirement
The intent of the requirement is to have the home country benefit from the Exchange Visitor’s experience in the United States. Exchange Visitors come to this country for a specific objective such as a program of study or a research project.
The requirement is intended to prevent a participant who is subject from staying longer than necessary for the objective, and to ensure that he or she will spend at least two years in the home country before coming back to the United States for a long-term stay.
Terms of the Requirement
If you are subject to the requirement, then, until you have “resided and been physically present” for a total of two years in either your country of nationality or your country of last legal permanent residence, you are not eligible for:
An H, L, or immigrant visa, or for H, L, or immigrant status in the United States. H includes temporary workers, trainees, and their dependents. L includes intracompany transferees and their dependents. An immigrant is the same as a permanent resident, or holder of a “green card.”
A change of your status, inside the United States, from J to any other nonimmigrant classification except A or G. (The A classification includes your home government’s diplomats and representatives to the United States government and their dependents. The G classification includes your government’s representatives to international organizations, such as the United Nations, and their dependents.)
You are subject to the Requirement if:
your J-1 participation is or was funded in whole or in part, directly or indirectly, for the purpose of exchange, by your home government or by the United States government
as a J-1 Exchange Visitor, you are acquiring a skill that is in short supply in your home country, according to the United States government’s Exchange Visitor Master Skills List
you have participated as a J-1 in a graduate medical education or training program (i.e. a residency, internship, or fellowship) sponsored by the Educational Commission for Foreign Medical Graduates
you are the J-2 dependent of an Exchange Visitor who is subject to the requirement
you have ever been subject to the requirement in the past, and have neither obtained a waiver nor fulfilled it by spending two years in your home country or country of last legal permanent residence (your previous subjectivity still holds if not fulfilled, even if a more current Form DS-2019 reflects no basis for such a requirement.)
The visa stamp in your passport, or your Form DS-2019, or both, may show an indication by a consular officer that you are or are not subject to the requirement. These indications are usually accurate but are not legally binding. Even though these endorsements are not final, U.S. Citizenship and Immigration Services (USCIS) usually accepts these indications that the Exchange Visitor is subject.
If you are unsure whether you are subject…
Consult your GSU J-1 advisor in International Student and Scholar Services. Be sure to take your passport, all copies of current and previous Forms DS-2019, your l-94 Departure Record card, and copies of prior l-94 cards if they are available. Your J-1 advisor can often tell from the source of funding, or the Exchange Visitor Skills List, whether the requirement applies or not.
If you are still uncertain, you might consult an attorney. Make sure that you talk to an immigration specialist, preferably a member of the American Immigration Lawyers Association. In selecting an attorney a personal recommendation is best, but if none is available, call the local chapter of the American Bar Association for a referral.
If you prefer not to see a lawyer, or are still uncertain, your J-1 Responsible Officer at Georgia State can request an advisory opinion from the U.S. Department of State (USDOS). For more information, please contact ISSS.
Waivers of the Requirement
There are four grounds for waiver of the requirement:
Exceptional hardship to your spouse or unmarried minor child who is a citizen or permanent resident of the United States. If, for example, you had a child who was born in the United States and was therefore a citizen of this country, and if the child had a serious medical condition that could not be treated in your country, you might obtain a waiver because the child would suffer a hardship by going there with you to live.
Fear of persecution on account of race, religion, political opinion
Interest of a United States government agency (only applies to alien physicians).
A “no objection” statement from your home country government. Your country’s embassy in Washington, DC can submit a no-objection statement to the U.S. Department of State through diplomatic channels.
Waiver Request/Approval and J1 Program Extension
An extension of the J-1 program may be obtained while a waiver request is pending, as long as you are within the maximum period of duration for your J-1 program category. However, if and when you receive a favorable recommendation or approval of the waiver, you are no longer considered by USDOS to be eligible for further extension, although you may complete the current J-1 program period. For this reason, you should time your application after your program has been extended to the maximum time available and while there is still plenty of time remaining in the program in case of delays in the waiver procedures.